Court Won’t Lift Order Against Waste Hauler

ALBANY, N.Y. (CN) – A Bronx waste hauler who dumped construction materials on a farm upstate cannot overturn an injunction, a New York appeals court ruled. The town of Copake in Columbia County had sued 13 Lackawanna Properties and its owner, Salvatore Cascino, for violating a 2010 temporary restraining order that prohibited nonagricultural activities on their 310-acre Copake Valley Farm. Copake has alleged for years that the defendants used the farm, located about an hour south of Albany, as a dumping ground for garbage, refuse and demolition debris. A Columbia County Supreme Court judge found that the defendants violated three sections of town code in building without required permits, dumping solid waste and using the property improperly – including operating a recycling business and storing commercial equipment and construction materials without authorization. The court also found they had created a public nuisance and violated a 2003 stipulation that required both a town-issued permit for any construction and use of the property solely for farming. The court permanently enjoined future unauthorized use and ordered a start to remedial measures, such as removal of at least 150,000 cubic yards of fill material from the farm. Cascino and his companies fought the order, but the Appellate Division’s third judicial department affirmed Thursday. “In our view, Supreme Court properly concluded that defendants violated Section 194 [of town code] by depositing solid waste on the premises, including dirt, rebar, rock, concrete, asphalt, bricks, plastic bags and bottles, and leaves,” Justice Thomas Mercure wrote for a five-member panel. “Defendant Salvatore Cascino admitted that he brought ‘dead dirt’ – which was derived from excavation, construction and public works projects located in and around New York City – to the property without applying for a permit, and that he intended to bring a million yards of that fill material to the property.” Cascino “testified in a conclusory fashion that defendants spread the material to improve the land for farming,” although corn planted there “reached only one-quarter of the height of the corn grown on the uncontaminated soil on the farm,” the decision states. While the defendants argued the injunction restricts their farming operations, the appellate panel pointed out that no one sought a ruling from the state Department of Agriculture and Markets on “whether plaintiff’s administration of its local land use regulations unreasonably restricted its farm operations.” “We defer to Supreme Court’s rejection of this testimony as lacking credibility,” Mercure wrote. The justices also rejected the argument that the removal order should be set aside because the town building inspector saw the fill being dumped and did nothing about it. “Defendants’ claim in this regard is belied by the 2005 stop-work order contained in the record; that order prohibited the dumping of construction and demolition debris” under town code, the decision states. “Given plaintiff’s issuance of the stop-work order and defendants’ persistent, willful disregard of prior court orders and their attempts to frustrate plaintiff’s enforcement of its local land use regulations, Supreme Court properly directed the removal of at least 150,000 cubic yards of fill material,” Mercure added. The justices also agreed that the defendants must remove a steel bridge and a stone wall and dismantle alterations to a farm stand, “given Cascino’s admission that defendants failed to obtain building permits for those projects.” The activities violated a 2003 stipulation that the defendants get a building permit before commencing any construction. The wall and work on the farm stand also violated the earlier temporary restraining order. The justices sided with the defendants as to the widening of an existing farm road. Copake “failed to demonstrate” that a farm road is a “structure” under town code and needs a permit to be altered, according to the appeals court. As a point of clarification, the justices said the injunction does not block any construction or excavation that does not require a permit, nor can it stop the defendants from engaging in agricultural activities, or from using a garage to maintain, repair and store farm equipment. Manhattan attorney Brian Gardner of Sullivan Gardner represented Cascino and his companies. Victor Meyers of Rapport Meyers in Hudson represented the town. The state Department of Environmental Conservation announced in July that it had secured a plea agreement to bar Cascino’s Bronx County Recycling from handling construction and demolition debris and solid waste in the state. As part of the agreement, Cascino pleaded guilty to second-degree offering a false instrument, a class E felony, according to the department. It said Cascino failed to report the receipt of large amounts of unauthorized waste in 2009, some of which he sent to Clermont in Columbia County. In 2010, then-Attorney General Andrew Cuomo brought two criminal indictments against Cascino and his firm, accusing them of illegally disposing of solid waste in the towns of Copake and Clermont and of filing false documents with the state to hide the illegal dumping. Also in 2010, the attorney general filed a civil action to compel Cascino, 13 Lackawanna and Copake Valley Farm LLC to comply with the terms of a 2007 consent decree that prohibited dumping solid waste at the farm in Copake. The Attorney General’s Office said a court-authorized search of the farm in 2009 showed that additional waste had been dumped there since 2007, in violation of the decree. A sampling showed the waste contained elevated levels of friable asbestos, a hazardous air pollutant, according to the office. In 2007, the attorney general announced a civil complaint focused on alleged violations of state environmental conservation law at the farm in Copake, including filling in wetlands that were home to an endangered bog turtle. The action also cited the construction of the steel bridge and wider farm road as potentially affecting a protected trout stream, the Noster Kill.